Warning letter sent to Marc Stein's lawyer warning her that defendants will request sanctions

8/9/2019 Warning letter sent to Marc Stein's lawyer warning her that defendants will request sanctions

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Law Offi ceMulvihill & Rushie LLC

Attorneys and Counselors at Law 2424 East York Street, Suite 316

Philadelphia, PA 19125 [email protected]

p. 215.385.5291 f. 215.525.0909 www.FishtownLaw.comLicensed in PA and NJ

October 14, 2014

Marirose Roach, Esq.Ken Manyin, Esq.Roach, Leite & Manyin, LLC2938 Levick Street Ground FloorPhiladelphia, PA 19149

Re: Stein v. NLNA, et. al.

Dear Ms. Roach and Mr. Manyin:

This letter is being sent to you before I le a Fed.R.Civ.P. 11 motion withthe court.

Attached is Barnes Foundation v. Township of Lower Merion, et. al. 242 F.3d 151 (3rdCir. 2001), which I must assume you read closely before ling suit againstthe NLNA defendants.

In Barnes Foundation, the Third Circuit explicitly recognized that the Noerr-Pennington doctrine provides an immunity for First Amendment activityallegedly constituting a civil rights abuse, especially when a racially discrim-inatory animus allegedly motivated the activity.

I note that the Third Circuit held it would have awarded fees to the defen-dants had the Noerr-Pennington doctrine been more rmly established inthis circuit at the time suit was led. But in declining to award sanctions inthat matter, the Third Circuit held that sanctions would be available in fu-ture matters:

Before we close our discussion of the Noerr-Pennington doctrine wehasten to add that persons contemplating bringing suits to stie First Amendment activity should draw no comfort f om this opinion becausethe uncertainty of the availability of a First Amendment defense when aplaintiff brings a civil rights case now has been dispelled. This point isof particular importance in land-use cases in which a developer seeks to
mailto:[email protected]


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Re: Stein v. NLNA, et. al.Page of2 2Tuesday, October 14, 2014

eliminate community opposition to its plans as this opinion shouldmake it clear that it will do so at its own peril. Id .

I am unaware of any current case law which supports your theory of liability.

Please respond to my letter by Friday, October 17 and advise whether youintend to proceed with suit, and on what non- f ivolous basis you are pro-ceeding.

Sincerely,

A. Jordan Rushie

CC: Marc J. Randazza, Esq. John E. Young, Esq.

Conor Corcoran, Esq.


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Page 1 otps://law.resource.org/pub/us/case/reporter/F3/242/242.F3d.151.99-2055.html

242 F.3d 151 (3rd Cir. 2001)

THE BARNES FOUNDATION, V.

THE TOWNSHIP OF LOWER MERION; THE LOWER MERIONBOARD OF COMMISSIONERS; GLORIA P. WOLEK,

INDIVIDUALLY AND IN HER CAPACITY AS PRESIDENT OF THETOWNSHIP BOARD OF COMMISSIONERS; FRANK LUTZ,

INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER;KENNETH E. DAVIS, INDIVIDUALLY AND IN HIS CAPACITY ASCOMMISSIONER; PHYLLIS L. ZEMBLE, INDIVIDUALLY AND IN

HER CAPACITY AS COMMISSIONER; ORA R. PIERCE,INDIVIDUALLY AND IN HER CAPACITY AS COMMISSIONER;

JAMES J. PRENDERGAST, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; ALAN C. KESSLER, INDIVIDUALLY AND IN

HIS CAPACITY AS COMMISSIONER; BRIAN D. ROSENTHAL,INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER;

JOSEPH M. MANKO, INDIVIDUALLY AND IN HIS CAPACITY ASCOMMISSIONER; HOWARD L. WEST, INDIVIDUALLY AND IN

HIS CAPACITY AS COMMISSIONER; W. BRUCE MCCONNEL, III,INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER;

JAMES S. ETTELSON, INDIVIDUALLY AND IN HIS CAPACITY ASCOMMISSIONER; DAVID A. SONENSHEIN, INDIVIDUALLY AND

IN HIS CAPACITY AS COMMISSIONER; REGENE H. SILVER,INDIVIDUALLY AND IN HER CAPACITY AS COMMISSIONER;STEVEN ASHER; INA ASHER, H/W; ROBERT MARMON; TOBY MARMON, H/W; WALTER HERMAN; NANCY HERMAN, H/W;

ARTHUR GERSHKOFF; LEONARD H. GINSBERG; BETH R.GINSBERG, H/W; MARK MOSTER; MARLENE MOSTER, H/W;

JAMES NEALON; LESTER SCHAEVITZ; DIANE SCHAEVITZ, H/W;MICHAEL TOAFF; ANNA LEV-TOAFF, H/W; BRUCE SCHAINKER

INA ASHER, STEVEN ASHER, NANCY HERMAN WALTER HERMAN, ROBERT MARMON AND TOBY MARMON,

APPELLANTS

No. 99-2055

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued October 5, 2000 Filed March 5, 2001


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OPINION OF THE COURT

Greenberg, Circuit Judge

I. FACTUAL & PROCEDURAL HISTORY

A. Factual History

On Appeal from the United States District Court for the Eastern District of PennsylvaniaDistrict Judge: The Honorable Ronald L. Buckwalter[Copyrighted Material Omitted]

Attorneys for Appellants: David H. Weinstein (argued) Kellie A. Allen Weinstein, Kitcheno ! ,Scarlato & Goldman 1608 Walnut Street Suite 1400 Philadelphia, PA 19103

Attorneys for Appellee: Sheryl L. Auerbach Maura E. Fay (argued) Dilworth, Paxson, Kalish &Kau ! man 1735 Market Street 3200 The Mellon Bank Center Philadelphia, PA 19103

Before: Nygaard, Greenberg, and Cowen, Circuit Judges.

This matter comes on before this court on appeal from an order entered on November 24,

1999, denying an application seeking attorney's fees filed by certain successful defendants inthe aftermath of the entry of an order dismissing the complaint against them in this civilrights action. The Barnes Foundation (the "Barnes"), which brought the action, is aPennsylvania corporation that operates an art gallery on North Latches Lane in Lower MerionTownship, Pennsylvania, in the Philadelphia suburbs. Dr. Albert C. Barnes established theBarnes in 1922 by Indenture and Agreement conveying the real estate that the Barnescurrently occupies, as well as his art collection. The Indenture provides that the Foundation'spurpose is "to promote the advancement of education and the appreciation of the fine arts." App. at 178. The Barnes is governed by a board of trustees that during the time relevant to thisaction consisted of Shirley A. Jackson, Niara Sudarkasa, Charles A. Frank III and Richard H.Glanton, the board's president. Lincoln University, which the Barnes describes as "apredominately and historically African-American university," see br. at 4, located in Chester

County, Pennsylvania, appoints all but one of the trustees and the Mellon Bank appoints theother. At the times relevant to this opinion, the trustees except for Frank, who is or was aSenior Vice President of Mellon, were African-American.

1

The six appellants-defendants, Ina Asher, Steven Asher, Nancy Herman, Walter Herman,Robert Marmon and Toby Marmon, are residents of the neighborhood in which the Barnes islocated. Even though the Barnes brought this action against 17 neighbors as well as LowerMerion Township (the "Township"), the Lower Merion Board of Commissioners (the"Board"), and each of the township commissioners (the "Commissioners") in their individualand official capacities, the six appellants are the only defendants who are parties to thisappeal.

2

The events giving rise to this case originate from the Barnes' operation and use of itsgallery. For many years access to the gallery was limited, see Barnes Found. v. Keely, 171 A.267, 268 (Pa. 1934), but in 1960, pursuant to the entry of a consent decree between theBarnes and the Commonwealth of Pennsylvania, the Barnes opened the gallery to the publictwo days per week, except during July and August of each year. Subsequently, the Barnesopened the gallery to the public for an additional half-day per week. In 1990, Glanton becamepresident of the Barnes' board of trustees and in that capacity, beginning in 1993, initiated amajor renovation of its facilities and art gallery. By reason of the renovation, the Barnes wasclosed until November 1995. To fund the renovations, the Barnes sent certain selected works

3


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of art from its collection on a world tour which generated a great deal of publicity for theBarnes.

Around August or September of 1995, prior to the Barnes' reopening, it sought permissionfrom the Township to construct a parking lot on its property. This application prompted theneighbors and other individuals to voice concerns over the facility's scheduled reopening asthey believed that the reopening would cause parking, noise and pollution problems.Contemperaneously, individuals living in the area of the Barnes, including the appellants,

formed The Latches Lane Neighborhood Association to oppose the Barnes' reopening, as wellas to challenge certain of its other activities that they believed violated the 1922 Indenture and Agreement as well as local zoning laws. The Barnes alleges that this opposition includedsupporting litigation in the Montgomery County Orphan's Court concerning its request tochange the terms and conditions for the operation of the gallery, in particular opposing itsattempt to expand its operations from two and one-half to six days per week.

4

The complaint in this action alleges that the Barnes' neighbors and township officialsconspired to deprive it of its constitutional rights on the basis of the race of three of the fourBarnes trustees and that the neighbors and officials agreed that the Township woulddiscriminate against the Barnes by requiring "strict compliance" with township rules andregulations and by "closely monitor[ing]" the Barnes, while not treating its institutional

neighbors in this way. See app. at 185. According to the Barnes, the conspiracy's ultimate goal was to prevent its reopening.

5

The Barnes set forth particularized allegations in its complaint. Thus, it charged that in themonths preceding its scheduled reopening, the Township and neighbors engaged in severalactivities with the intention of preventing its reopening. The Barnes said that to further thisgoal during the last two months of construction at the Barnes, a township inspector made sixunannounced visits to the site and that during the final inspection of the premises on October30, 1995, approximately two weeks prior to the scheduled reopening, the deputy fire marshalannounced prior to beginning an inspection that the facility would not pass. The Barnesalleges that he imposed several arbitrary and unreasonable requirements on it asrequirements for obtaining a certificate of occupancy.

6

On November 9, 1995, two days before the Barnes' scheduled opening gala events, DavidLatshaw, the Township Manager, sent Glanton a letter criticizing, among other things, theBarnes' lack of a traffic plan for the reopening. Glanton responded by letter indicating his belief that Latshaw's letter was overly hostile and that the Township was treating the Barnesdifferently from other entities because of racial animus. The Barnes asserts that when theparties met the day of the opening gala, the Township treated it in an overtly hostile manner.

7

The complaint further alleges that on November 10 and 11, 1995, during the opening galaevents, certain persons, including appellants Ina Asher, Walter Herman, Robert Marmon, andToby Marmon, congregated and picketed at the Barnes' main gate to protest its reopening.Moreover, it asserted that unspecified individuals carried placards that read, among otherthings, "From LA to PA, Money Buys Justice" and "Lincoln University - Go Home." Inaddition, Robert Marmon and Toby Marmon videotaped gallery visitors entering and exitingthe Barnes.

8

Four days after the gala events, the Commissioners held a meeting to discuss the Barnessituation. At the hearing, several neighbors, including Robert Marmon and Steven Asher,spoke out against the official reopening scheduled for the following day, November 16, 1995.Specifically, Robert Marmon stated, in relevant part:

9

For sixteen years we hardly knew the Barnes Foundation was across the street. They were10

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B. Procedural History

good neighbors. Then, something changed. We didn't change. We did nothing wrong.Outsiders have taken over the Barnes, people who have no attachment to the neighborhood,to the life we have quietly enjoyed. We have been citizens here for decades. Mr. Glanton andhis people have not been. We have been voters here for decades. Mr. Glanton and his peoplehave not. And most importantly, we have been taxpayers here for decades and Mr. Glantonand his people have not. I now finally understand what a carpetbagger is and how oneoperates.

Id. at 94. The Barnes contends that Marmon's use of the words "outsiders," "Mr. Glantonand his people," and "carpetbagger" indicates a racially hostile attitude both on his part andon that of his fellow neighbors.

11

At the end of the meeting, the Commissioners adopted a resolution requesting that theBarnes delay its reopening until it developed plans to manage the parking and crowdproblems effectively, or, if the opening proceeded, to "take any and all appropriate actionsnecessary to maintain the peace, safety, and quality of life of the surrounding neighborhoodand its residents and assure that the operation of the facility by the Barnes Foundationcomplies with the Township of Lower Merion zoning code." Id. at 100. The Commissionersadopted the resolution pursuant to their findings that the Barnes estimated that it would havesignificantly more visitors in the first year following the reopening than in previous years, and

that the parking and crowd control arrangements to accommodate the visitors wereinadequate. Moreover, the Commissioners were concerned that the proposed use did notcomply with the Township's zoning laws which apparently zoned the Latches Lane area forresidential and educational use, but not for an art gallery. The Commissioners therefore believed that the Barnes might violate the local zoning ordinances if the primary focus of itsoperations was the operation of the gallery, as opposed to conducting its educationalprograms.

12

Notwithstanding the objections, the Barnes reopened, though it did not attract as many people as anticipated. The neighbors still had complaints, however, about traffic and parking,and the concerns about potential zoning violations persisted. The Township addressed theseissues in a letter dated November 29, 1995, from the President of the TownshipCommissioners to the neighbors informing them that the Commissioners had heard theirconcerns and had been moved to act in response.

13

On December 13, 1995, the Township issued a violation notice against the Barnes because it was open more than two and one-half days per week and received more than 500 visitors per week, thus violating the operating restrictions imposed on it since 1961. The Barnes contendsthat the Township zoning officer admitted that he had no rational basis for ordering theBarnes to comply with the 1961 attendance levels restrictions, particularly inasmuch as theTownship had not been doing so immediately prior to its closure for renovations. 1

14

Following the issuance of the December 13, 1995 notice of violation the Barnes filed a

district court complaint on January 18, 1996, alleging that the Township, the Board, theCommissioners and 17 of the Barnes' residential neighbors deprived and conspired to depriveit of its rights under the Due Process and Equal Protection Clauses of the United StatesConstitution contrary to 42 U.S.C. 1983 and 1985 by treating it differently from itsinstitutional neighbors as a result of a racially-motivated conspiracy between the Townshipand the neighbors. 2 On March 18, 1996, the Township, the Board and the Commissionersfiled motions to dismiss the Barnes' complaint, but the district court denied the motions by Memorandum and Order dated June 3, 1996. See Barnes Found. v. Township of LowerMerion, 927 F. Supp. 874, 875 (E.D. Pa. 1996). 3 Between March 18, 1996, and April 1, 1996,

15
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II. DISCUSSION

A. Standard of Review

all of the neighbor defendants also filed motions to dismiss the complaint, contending thatthey enjoyed First Amendment immunity from liability for petitioning the government. Id. at875-76. The district court agreed with the neighbors and thus, in its June 3, 1996Memorandum and Order, granted their motions to dismiss. See id. at 878.

Subsequently the Township and the Commissioners filed a joint counterclaim asserting that by bringing this action the Barnes abused the judicial process. The Barnes responded to thecounterclaim with a motion to dismiss which the district court denied. Thereafter, the Barnes

unsuccessfully sought permission to amend the complaint further, adding new claims againstthe neighbor defendants and asserting claims on behalf of Glanton individually.

16

Following the close of discovery, the Township, the Board and the Commissioners filedmotions for summary judgment on all of the Barnes' claims, which the district court grantedon September 26, 1997. See Barnes Found. v. Township of Lower Merion, 982 F. Supp. 970,1005 (E.D. Pa. 1997). The Township's and Commissioners' counterclaim was dismissedthereafter pursuant to a settlement, and a final order was entered on October 2, 1998, andthen amended on October 28, 1998. The Barnes appealed from the district court's final order but then voluntarily dismissed the appeal. Glanton also filed an appeal which we dismissed onMarch 12, 1999.

17

Upon resolution of the summary judgment motions, the appellants filed a motion forattorney's fees and expenses pursuant to 42 U.S.C. 1988 which the district court denied onNovember 24, 1999. See Barnes Found. v. Township of Lower Merion, No. CIV. A. 96-372,1999 WL 1065213 (E.D. Pa. Nov. 24, 1999). The appellants then appealed from the districtcourt's November 24, 1999 order. 4

18

We review the district court's order denying the appellants' motion for attorney's fees on anabuse of discretion basis. See EEOC v. L.B. Foster Co., 123 F.3d 746, 750 (3d Cir. 1997);Brown v. Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990). In this case, the

appellants challenge the district court's conclusions both as to the legal and factual sufficiency of the Barnes' claims. We exercise plenary review over sufficiency of evidence issues and legalissues but use the clearly erroneous standard when reviewing factual findings. See Quiroga v.Hasbro, Inc., 934 F.2d 497, 502 (3d Cir. 1991); Rode v. Dellarciprete, 892 F.2d 1177, 1182-83(3d Cir. 1990). 5

19

B. Availability of Attorney's Fees Pursuant to Section 198820

The appellants contend that the district court erred in concluding that the Barnes' claims were neither legally nor factually frivolous and that it should have awarded them attorney'sfees on both of those bases pursuant to section 1988. Section 1988 provides, in relevant part:"In any action or proceeding to enforce a provision of sections... 1983 [and] 1985... of this

title,... the court, in its discretion, may allow the prevailing party, other than the UnitedStates, a reasonable attorney's fee as part of the costs...." 42 U.S.C. 1988(b). The "prevailingparty" can be either the plaintiff or the defendant but the standard for awarding attorney'sfees to prevailing defendants is more stringent than that for awarding fees to prevailingplaintiffs. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700(1978); L.B. Foster, 123 F.3d at 750- 51. 6 As the Supreme Court held in Christiansburg, whileprevailing plaintiffs "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust," a prevailing defendant is entitled to attorney's fees only "upon a finding that the plaintiff's action was frivolous, unreasonable or withoutfoundation...." Christianburg, 434 U.S. at 416-17, 421, 98 S.Ct. at 698, 700. Nevertheless, it is

21
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C. Legal Sufficiency of the Barnes' Claims

not necessary that the prevailing defendant establish that the plaintiff had subjective bad faithin bringing the action in order to recover attorney's fees. Rather, the relevant standard isobjective. See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178 (1980). Furthermore, theSupreme Court has indicated that "it is important that a... court resist the understandabletemptation to engage in post hoc reasoning by concluding that because a plaintiff did notultimately prevail his action must have been unreasonable or without foundation."Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700.

We have relied on several factors in determining whether a plaintiff's unsuccessful civilrights claim was frivolous including whether the plaintiff established a prima facie case, thedefendant offered to settle, the trial court dismissed the case prior to trial or the casecontinued until a trial on the merits. See L.B. Foster, 123 F.3d at 751. Other factors that courtshave considered in determining if an action was frivolous include whether the question inissue was one of first impression requiring judicial resolution, the controversy is basedsufficiently upon a real threat of injury to the plaintiff, the trial court has made a finding thatthe suit was frivolous under the Christiansburg guidelines, and the record supports such afinding. See Unity Ventures v. County of Lake, 894 F.2d 250, 253-54 (7th Cir. 1995). Theseconsiderations, however, are merely guidelines, not strict rules; thus "[d]eterminationsregarding frivolity are to be made on a case-by-case basis." Sullivan v. School Bd., 773 F.2d1182, 1189 (11th Cir. 1983).

22

The appellants first argue that the Barnes knew or should have known that they enjoyedFirst Amendment immunity for their conduct pursuant to the Noerr-Pennington doctrine.The Barnes contends that an individual's immunity under that doctrine for alleged violationsof civil rights was not established in this circuit at the time it filed suit, particularly in cases in which it was alleged that a racially discriminatory animus motivated a defendant's actions.Therefore, it argues that its case against the neighbors, including the appellants, was notlegally frivolous.

23

Unquestionably, given the outstanding case law at the time the Barnes filed suit against theneighbors, the district court properly dismissed its case against them by reason of their First Amendment immunity and, indeed, the Barnes on this appeal does not challenge thatdisposition. But, as we shall explain, prior to the institution of this action neither the SupremeCourt nor this court had held expressly that the Noerr-Pennington doctrine provides animmunity for First Amendment activity allegedly constituting a civil rights abuse, especially when a racially discriminatory animus allegedly motivated the activity.

24

1. Status of the Law in the Supreme Court and this Circuit25

The Noerr-Pennington doctrine originated more than 30 years prior to the Barnes filing thecomplaint in this action when the Supreme Court held in Eastern Railroad PresidentsConference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523 (1961) ("Noerr"), andUnited Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585 (1965) ("Pennington"), that

an individual is immune from liability for exercising his or her First Amendment right topetition the government. See Pennington, 381 U.S. at 669-70, 85 S.Ct. at 1593; Noerr, 365U.S. at 137-38, 81 S.Ct. at 529-30; see also City of Columbia v. Omni Outdoor Advertising,Inc., 499 U.S. 365, 379-80, 111 S.Ct. 1344, 1353-54 (1991). The Court made these rulings in anantitrust context where the defendants engaged in campaigns directed towards obtaininggovernmental action for the purpose of eliminating competition in their respective industries.See Pennington, 381 U.S. at 660, 85 S.Ct. at 1588; Noerr, 365 U.S. at 129, 81 S.Ct. at 525. Inthose situations, the plaintiffs alleged that the defendants' conduct violated the Sherman Antitrust Act. See Pennington, 381 U.S. at 659, 85 S.Ct. at 1588; Noerr, 365 U.S. at 129, 81

26


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S.Ct. at 525. The Supreme Court disagreed with the plaintiffs, holding that the Sherman Actdid not proscribe the campaign. See Pennington, 381 U.S. at 671, 85 S.Ct. at 1594; Noerr, 365U.S. at 145, 81 S.Ct. at 533. The Court recognized that the "right of petition is one of thefreedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congressan intent to invade these freedoms." Noerr, 365 U.S. at 138, 81 S.Ct. at 530. The Court heldthat there was immunity regardless of the defendants' motivations in waging their campaigns,as it recognized that the right of individuals to petition the government "cannot properly bemade to depend on their intent in doing so." Id. at 139, 81 S.Ct. at 530.

The Supreme Court and this court have extended the scope of the Noerr-Penningtondoctrine beyond the antitrust context. Thus, in NAACP v. Claiborne Hardware Co., 458 U.S.886, 102 S.Ct. 3409 (1982), the Court applied the Noerr-Pennington doctrine to a civilconspiracy claim by white merchants whose businesses were boycotted by the NAACP. See id.at 912-14, 102 S.Ct. at 3425-26. The boycott was intended to force compliance with a list of demands for racial equality and integration that had been presented to white elected officials.See id. at 889-90, 102 S.Ct. at 3413. The boycott was supported by speeches, meetings andpicketing, although there were threats of actual violence as well. Applying the principles setforth in Noerr-Pennington, the Court unanimously held that the First Amendment protectedthe nonviolent aspects of the boycott. See id. at 907-08, 102 S.Ct. at 3422 (reaffirmingprinciple that "`the practice of persons sharing common views banding together to achieve a

common end is deeply embedded in the American political process'" (quoting Citizens AgainstRent Control Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434,436 (1981))). The Court reached its conclusion even though some members of the group may have engaged in unprotected conduct.

27

We extended the principles of the Noerr-Pennington doctrine in Pfizer Inc. v. Giles (In re Asbestos School Litigation), 46 F.3d 1284 (3d Cir. 1994), and Brownsville Golden Age NursingHome, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988), in which we held that the respectivedefendants were immune from liability for civil conspiracy pursuant to the First Amendment.See Pfizer, 46 F.3d at 1289-90; Brownsville, 839 F.2d at 160. In Brownsville, the plaintiff, anursing home, alleged that the defendants engaged in a civil conspiracy designed to lead tothe state revoking its nursing home license. See Brownsville, 839 F.2d at 156. Two defendants,

private citizens who visited the nursing home, communicated their concern over what they viewed as appalling conditions to federal and state officials. See id. at 157-58. They engagedthe efforts of Senator Heinz, and together sought to have the home decertified. See id. at 158.The district court granted the defendants' summary judgment motions, and we affirmed. Seeid. Relying on the Noerr-Pennington doctrine we held that the defendants were immune fromconspiracy liability for damages resulting from inducing official action. See id. at 160.

28

Likewise, in Pfizer the plaintiff alleged that the defendants, several manufacturers of asbestos-containing building products ("ACBPs"), conspired with each other and acted inconcert to produce and sell ACBPs without warnings and with knowledge of the danger they presented. See Pfizer, 46 F.3d at 1286. One of the defendants, Pfizer, moved for summary judgment on the civil conspiracy and concert of action claims, claiming that the evidencesupporting the plaintiffs' claims consisted entirely of the fact that Pfizer had manufactured an ACBP from 1964 until 1972 and that in 1984, Pfizer became associated with the Safe Buildings Alliance ("SBA"), a lobbying organization that, among other things, represented its members'interests before federal, state and local government officials and agencies. See id. at 1287. Thedistrict court denied Pfizer's motion on the ground that a jury reasonably could concludethere was a conspiracy based on Pfizer's involvement with and financial support for the SBA.See id. Pfizer unsuccessfully moved for reconsideration and, following the denial of its requestfor certification of an interlocutory appeal, it petitioned us seeking a writ of mandamus thateffectively would overturn the district court's decision. See id. at 1288.

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2. Status of the Law in Other Circuits

We granted Pfizer's petition. See id. at 1290. Relying on Claiborne Hardware, we found thatthe First Amendment right to petition government protected Pfizer's association with the SBA and that to the extent that the First Amendment did not protect the SBA's activities, Pfizercould not be held liable absent evidence that its actions with regard to the SBA were intendedspecifically to further that wrongful conduct.

30

Therefore, at the time the Barnes filed its complaint, we already had applied the Noerr-Pennington doctrine in varied contexts. Nevertheless, while in Pfizer we stated that we saw no

reason why this principle of First Amendment immunity was not meant to have generalapplicability, we had not determined in an actual case involving a claim of an infringement of civil rights that a Noerr-Pennington defense was available when the Barnes filed its complaintin this action. While not determinative, this circumstance mitigates against a finding that theBarnes' suit against the neighbors was legally frivolous. See Tarter v. Raybuck, 742 F.2d 977,987 (6th Cir. 1984) (reversing award of attorney's fees to prevailing defendant in part becauselegal issue was not well-settled in circuit or country).

31

We recognize that by the time the Barnes filed its complaint, several other courts of appealshad made the Noerr-Pennington doctrine and First Amendment immunity expressly applicable as defenses to causes of action arising under federal civil rights laws. See Eaton v.Newport Bd. of Educ., 975 F.2d 292, 299 (6th Cir. 1992) (holding teachers' union andindividual immune under Noerr-Pennington for lobbying that led to school principal'sdischarge); Video Int'l Prod., Inc. v. Warner Amex Cable Communications, Inc., 858 F.2d1075, 1084 (5th Cir. 1988) (finding Noerr-Pennington precluded defendant's liability asconspirator with city in violation of civil rights under 42 U.S.C. 1983); Stevens v. Tillman,855 F.2d 394, 404-05 (7th Cir. 1988) (noting applicability of Noerr-Pennington as defense toplaintiff's civil rights action, but finding for defendants on other grounds); Evers v. County of Custer, 745 F.2d 1196, 1204 (9th Cir. 1984) (upholding award of attorney's fees to defendantsimmunized from liability by Noerr-Pennington for petitioning government to declare roadspanning plaintiff's land public); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614-15(8th Cir. 1980) (holding private citizen immune from section 1983 liability in zoning dispute). We think that this point is important because, even in the absence of binding precedent in thiscourt, the presence of well-established case law in other circuits when an action is filed coulddemonstrate that the action was frivolous.

32

Only one of the foregoing cases, however, arose in the context of allegedly racially-motivated petitioning activity. Stevens involved a federal civil rights claim filed by a schoolprincipal against members of the local parent-teacher association. See Stevens, 855 F.2d at395. The plaintiff alleged that certain members of the association conspired to influence the board of education to transfer her to another school because of her race. 7 See id. But thecourt of appeals did not reach the immunity issue because it determined that the plaintiff hadnot suffered an injury at official hands. See id. at 405. The court remarked in dicta, however,that it "very much doubt[ed] that 1985(3) properly may be used to penalize racially-motivated political campaigns, any more than the antitrust laws may be used to penalizedeceitful campaigns to obtain protection from competition." Id. at 404. While we recognizethat this statement certainly should have been an indication to the Barnes that its claimsagainst the neighbors likely would not succeed, still inasmuch as it was made in a differentcircuit it does not carry such weight as to make the Barnes' claim legally frivolous.

33

Moreover, we are encouraged to r each the conclusion that the Barnes' action was notlegally frivolous by the circumstance that courts addressing that doctrine in a civil rightscontext have not adopted the Stevens position universally. In LeBlanc-Sternberg v. Fletcher,781 F. Supp. 261 (S.D.N.Y. 1991), the district court denied the defendants' motion to dismiss

34
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D. Factual Sufficiency of Barnes' Claims

in a situation in which they were accused of petitioning for the incorporation of a village toimpose strict zoning rules which would discourage and prevent Orthodox Jewish residentialneighborhoods from developing in the community. See id. at 267. The court stated:

Taking the plaintiffs' allegations of defendants' motives as true, we are not prepared toconclude that defendants' conduct is protected by the first amendment. The `firstamendment... may not be used as the means or the pretext for achieving "substantial evils" which the legislature has the power to control.'... To allow individuals to avail themselves of

first amendment protections when it is alleged that their conduct will lead to officialmisconduct in violation of the United States Constitution would defeat the purpose of the civilrights laws.

35

Id. (quoting California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92S.Ct. 609, 614 (1972)). In California Motor Transport, the Court held that the plaintiff, atrucking company, stated a cause of action under the Clayton Act against its competitors where the competitors engaged in concerted activities to institute state and federalproceedings designed to interfere with the plaintiff's business. See California Motor Transp.,404 U.S. at 509, 92 S.Ct. at 611. The Court relied on the "sham" exception to the Noerr-Pennington doctrine which denies immunity for petitioning activity where the purpose issolely to interfere with the business relationships of a competitor rather than to effectuate

governmental action aimed at accomplishing the same result. Noerr, 365 U.S. at 144, 81 S.Ct.at 533.

36

Obviously LeBlanc-Sternberg was not binding authority in this circuit when the Barnesinitiated this case but the sham exception to Noerr-Pennington immunity as set forth in Noerrand California Motor Transport certainly was. While there is a legitimate argument that thesham exception to the Noerr-Pennington doctrine could not have been applicable here andthat the Barnes should have so recognized, nevertheless LeBlanc-Sternberg demonstrates that when the Barnes instituted this action there was some question as to the applicability of theNoerr-Pennington doctrine as a defense to its claim.

37

Overall, we are satisfied that the availability of the Noerr-Pennington doctrine as a defenseto a federal civil rights claim where a defendant's conduct allegedly was racially motivated wasnot completely established in this court at the time the Barnes filed suit in this matter.Moreover, we are satisfied that notwithstanding the trend of the cases at that time, othercourts had not come to a uniform conclusion on the point. Accordingly, taking into accountthe standards set forth in Christiansburg and L.B. Foster, we conclude, though the issue isclose, that the district court did not err in determining that the Barnes' claim was not legally frivolous.

38

Before we close our discussion of the Noerr-Pennington doctrine we hasten to add thatpersons contemplating bringing suits to stifle First Amendment activity should draw nocomfort from this opinion because the uncertainty of the availability of a First Amendmentdefense when a plaintiff brings a civil rights case now has been dispelled. This point is of particular importance in land-use cases in which a developer seeks to eliminate community opposition to its plans as this opinion should make it clear that it will do so at its own peril.

39

Notwithstanding our conclusion with respect to the legal question of the applicability of theNoerr-Pennington doctrine, the factual sufficiency vel non of the Barnes' claims is quiteanother matter which we must consider separately. In considering this issue, we start by setting forth the elements of a cause of action under 42 U.S.C. 1985(3), as Barnes sued theneighbors and thus the appellants under that statute. Section 1985(3) provides a cause of

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action if: (1) two or more persons conspire to deprive any person of the equal protection of thelaw; (2) one or more of the conspirators performs or causes to be performed any overt act infurtherance of the conspiracy; and (3) that overt act injures the plaintiff in his person orproperty or deprives the plaintiff of any right or privilege of a citizen of the United States. SeeGriffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99 (1971); Bougher v.University of Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989). Section 1985(3), however, does notinclude a requirement that the conspirators act "under color of state law," as is the case in anaction under 42 U.S.C. 1983, as section 1985(3) makes actionable private conspiracies to

deprive a citizen of the equal enjoyment of rights secured to all. See Griffin, 403 U.S. at 95-102, 91 S.Ct. at 1794-98; Phillips v. Trello, 502 F.2d 1000, 1004-05 (3d Cir. 1974). Here, theBarnes predicated its claim of an equal protection violation on racial discrimination. Whilethe Barnes also brought its action against the appellants under 42 U.S.C. 1983, we see noneed to discuss the possible applicability of that section to the appellants who are privateparties as our conclusion with respect to the Barnes' section 1985 claim applies to its section1983 claim as well.

In analyzing the sufficiency of the factual basis for the Barnes' claims, the district court firstrecognized that the Barnes never proffered any direct evidence of racial hostility. See BarnesFound., 1999 WL 1065213, at *3. The court found that instead the Barnes based the suit onconduct that, while subtle, could be considered no less discriminatory. See id. Therefore, the

court characterized the issue as follows:Thus, in deciding the groundless issue, the key questions are: Can this complaint be said to have a factual foundation for its allegations of discriminatory treatment based on race when those allegations are based upon a theory thatdefendants' conduct, though not found by direct evidence to be racially motivated, wasactually a sophisticated cover-up for racial discrimination. That is, can a reasonable factualfoundation be established to support plaintiff's theory by drawing inferences from certainobjective facts which are generally not in dispute?

41

Id. at *4. The district court answered its question affirmatively, though it qualified theanswer by requiring that the inference be reasonable. See id. The court held that to base acomplaint on circumstantial evidence, the "plaintiff must be able to point to a factual pattern which fairly implies racial discrimination, going beyond a mere suggestion that in today's

world, subtle conduct masks racism." Id. The court found that the inferences supporting theBarnes' complaint were reasonable and thus it denied the appellants' motion for attorney'sfees.

42

In so holding, however, the district court completely ignored the opinions of the SupremeCourt in Claiborne Hardware and of this court in Pfizer which held that the First Amendmentrequires more than evidence of association to impose liability for conspiracy and, in fact,prohibits liability on that basis alone. See Claiborne Hardware, 458 U.S. at 918-19, 102 S.Ct.at 3428-29; Pfizer, 46 F.3d at 1289. Thus, the Supreme Court in Claiborne Hardwareexplained that "[f]or liability to be imposed by reason of association alone, it is necessary toestablish that the group itself possessed unlawful goals and that the individual held a specificintent to further those illegal aims." Claiborne Hardware, 458 U.S. at 920, 102 S.Ct. at 3429;see Pfizer, 46 F.3d at 1289. Furthermore, the court must judge this intent "according to thestrictest law." Claiborne Hardware, 458 U.S. at 919, 102 S.Ct. at 3429. Therefore, while it isclear that Claiborne Hardware and Pfizer were the controlling legal authorities when thedistrict court denied the appellants' applications, and continue to be so, the district court didnot follow or even cite either of those cases when it made its ruling.

43

How, then, did the district court reach its result inasmuch as it acknowledged that there was no direct evidence of racial hostility on the appellants' part? See Barnes, 1999 WL1065213, at *3. It did so by concluding that on the record before it, one reasonably could draw an inference of racial animus by the appellants sufficient to support a claim against all of

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them. Id. at *4. It based this conclusion on what it deemed a representative example of theBarnes' evidence of discriminatory treatment including: (1) an affidavit from ThomasMassaro, a land use consultant, who opined that the neighbors were so firmly and irrationally opposed to the Barnes' proposal that it suggested their concerns were a pretext for racialprejudice; (2) Massaro's opinion that the neighbors' concerns about traffic problems caused by the Barnes were inconsistent with the realities of the neighborhood given the closeproximity of St. Joseph's University and the Episcopal Academy; (3) an affidavit from PeterKelsen, the attorney retained by the Barnes to secure a parking lot building permit, stating the

Township should have allowed the parking lot without zoning board approval, Townshiprepresentatives and neighbors expressed a high level of animosity towards Glanton, theirmeetings were becoming increasingly confrontational and that comments by the neighbors were of an overly discriminatory nature; (4) an affidavit from Ann B. Laupheimer, an attorney for the Barnes, stating that she discussed the possibility of a lawsuit with other lawyers and,following an investigation into the law and facts, determined there was sufficient evidence to warrant proceeding; (5) an affidavit from Jordana Cooper, an attorney for the Barnes,acknowledging that while she did not anticipate the Noerr-Pennington defense, there waslittle reason to do so because it was a novel one in this court at the time; (6) examples of unequal treatment by the Township with regard to traffic and parking between the Barnes andits institutional neighbors; (7) a Township Commissioner's alleged statement that theCommissioners were outraged and were going to help; and (8) Robert Marmon's statements

at the November 15, 1995 meeting where he used "code words" such as "Mr. Glanton and hispeople," "carpetbaggers" and "outsiders" in discussing the situation at the Barnes. See id. at*2-3. This evidence, in addition to the historical background of the Barnes which involvedovert racial hostility from the surrounding community, led the district court to conclude thatit was reasonable to infer that each of the neighbors and thus each of the appellants wasmotivated by racial hostility. Id. at *4.

We hold that the district court erred in its conclusion as obviously the items it cited were atotally inadequate foundation on which to predicate an inference that racial animus motivatedthe appellants, except possibly Robert Marmon. Indeed, it is not acceptable to predicateinferences of racial animus against the neighbors and thus the appellants because of the legal views of the Barnes' professional representatives supporting its cause or because of the

actions of Township officials. In particular, we point out that the Barnes' representatives andthe Barnes itself should have recognized that persons may controvert their views without being racists.

45

Furthermore, with the exception of the last example considered by the district court, whichmentions only Robert Marmon, none of the evidence that does refer to the Barnes' neighborsspecifies which neighbors were involved in the actions. There are merely allegations thatcertain unnamed and unidentified "neighbors" were involved in allegedly discriminatory treatment. The same is true for the evidence the Barnes has highlighted on this appeal, seeBarnes' Br. at 22-24, namely that: (1) the neighbors expressed concerns over increased trafficand parking problems associated with the use of the Barnes' facility, but did not complainabout the traffic generated by St. Joseph's University and the Episcopal Academy; (2) Robert

Marmon and Toby Marmon, Ina Asher and Walter Herman were seen in front of the Barnesamong picketers holding signs reading "From LA to PA, Money Buys Justice" and "LincolnUniversity -- Go Home;" and (3) the neighbors founded, were members of, and contributedmoney to the Latches Lane Neighborhood Association for the purpose of acting in concertagainst the Barnes. 8

46

There was, therefore, no evidence indicating racial animus on the part of five of the sixdefendants: Ina Asher, Steven Asher, Nancy Herman, Walter Herman or Toby Marmon.Nevertheless, in the absence of that evidence the district court relied on generalized assertionsof discriminatory treatment to permit an inference to be drawn of racial animus on the part of

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all of the neighbors and thus of the appellants. This reliance plainly was contrary to theSupreme Court's ruling in Claiborne Hardware that in order to hold an individual liable by reason of association with a group there must be evidence, judged according "to the strictestlaw," that the individual held a specific intent to further those illegal aims. Accordingly, as toappellants Ina Asher, Steven Asher, Nancy Herman, Walter Herman and Toby Marmon, thedistrict court erred in concluding that the Barnes' complaint was not factually groundless and we thus will reverse the district court's order denying their motion for attorney's fees.

In reaching our result, we feel constrained to point out that surely it is outrageous that theBarnes, while purportedly securing its own civil rights, brought a groundless action againstthe appellants thereby trampling their First Amendment rights. To justify its conduct, theBarnes in the conclusion of its brief quotes our opinion in Aman v. Cost Furniture RentalCorp., 85 F.3d 1074, 1082 (3d Cir. 1996), to the effect that discrimination "continues topollute the social and economic mainstream of American life" and that the courts should"ensure that prohibited discrimination is not approved under the auspices of legitimateconduct." But in Aman we did not suggest that a minority-led organization was free to file a baseless suit against persons challenging its activities and then be able to seek shelter behindits minority status when the wrongfully charged defendants seek redress against it for having been put to the expense of defending against the action. In short, a minority-led organizationis not exempted from facing the consequences of its wrongful actions merely because of the

race of its leadership. But the fact is that unless we discredit the deposition testimony of Charles A. Frank, III, which we discuss below, we must conclude that the Barnes cynically brought this frivolous action to capitalize on its minority status to achieve its goal of alleviating its parking problems.

48

Notwithstanding our result with respect to the other five appellants, we are satisfied thatthe Barnes did proffer evidence that racial animus may have motivated Robert Marmon'sconduct. While his comments during the Commissioners' meeting were arguably racially ambiguous, we cannot say that it is unreasonable to infer that they communicated racialhostility and discriminatory motivation. Accordingly, although the evidence is thin, given thedeferential standard of review on this appeal we cannot conclude that the district courtabused its discretion in determining that the Barnes' claim against Robert Marmon was not

factually groundless.9

49

The appellants also contend that the district court erred by failing to consider theirevidence that Glanton and thus the Barnes had a wrongful ulterior motive in filing suit againstthem, namely to expedite the Township's approval for an on-site parking lot in part by stiflingpublic opposition to its plans. The appellants argue that if left undisturbed, the district court'sdenial of their motion for attorney's fees will have a chilling effect on First Amendmentactivity by private individuals as they will face the possibility of being burdened withsubstantial legal expenses for engaging in constitutionally-protected conduct. In consideringthis argument we point out that the appellants' evidence of the Barnes' wrongful motive in bringing this action obviously was compelling because they elicited the information fromFranks at his deposition. After all, inasmuch as Franks was a Barnes trustee he would have been in a position to understand what the Barnes was doing and the motivations for itsactions. Franks testified that Glanton "has all along represented his interest in resolving theparking issues, and [Glanton] felt that the filing of [the] complaint [in this action] wouldaccelerate the settlement of that issue. [Glanton] was only after his parking and nothing else." App. at 276. Further more, Franks stated his position that this action was of doubtful validity contemperaneously with the events as they unfolded for on January 18, 1996, the day theBarnes filed this suit, he wrote Glanton and indicated that he was opposed to filing thecomplaint because he had "serious concerns whether the allegations in the draft complaint areappropriate or accurate." App. at 279.

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III. CONCLUSION

In denying the appellants' motion for attorney's fees, the district court did not mentiontheir claim that the Barnes had brought this action in bad faith. The Barnes seems to suggestthat from this omission we should infer that the court considered and rejected the bad faithclaim. See Barnes' Br. at 27-30. We, however, recently have held that "it is incumbent upon adistrict court to make its reasoning and application of the fee-awards jurisprudence clear, sothat we, as a reviewing court, have a sufficient basis to review for abuse of discretion." Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 196-97 (3d Cir. 2000). Without any statement fromthe district court explaining its reason for not allowing the appellants attorney's fees on the

basis of this claim, we are not able to say the district court rejected their argument. Werecognize that a reversal on this bad faith point may have no practical consequences to theappellants other than Robert Marmon as they are entitled to reasonable attorney's fees for thereasons we already have set forth. Nevertheless, we will reverse on the bad faith claim and willremand the case to the district court for a determination of the appellants' claim that theBarnes brought this action in bad faith because Robert Marmon is entitled to receive the benefit of a reconsideration of his claim on this basis.

51

For the foregoing reasons we will reverse the order of the district court of November 24,1999, and will remand the case to that court for calculation of the attorney's fees that should

be allowed to the appellants other than Robert Marmon and to reconsider the claim that theBarnes brought this action in bad faith. In the event that the court determines that the Barnes brought this action in bad faith it shall allow him reasonable attorney's fees as well.

52

NOTES:

The notice of violation was withdrawn, but filed again on the same grounds on August 6, 1996.1

The complaint included an immaterial allegation that Glanton is a Republican. See app. at 179.In this regard, we point out that a party to litigation should not gratuitously set forth in itspleadings the political affiliation of its president lest the court believe that the party is making an

appeal for favorable treatment on account of that affiliation.

2

The Commissioners and other Township officials also filed a defamation action against thetrustees of the Barnes on March 3, 1996, in state court.

3

Defendants Leonard H. Ginsburg and Beth Ginsburg joined in the motion but are not parties tothe appeal. Other defendants also submitted motions seeking fees but as those motions are notimplicated on this appeal we need not discuss their disposition.

4

We note that in his dissenting opinion Judge Nygaard recites that we have vested the trial court with "discretionary authority [with respect to fee applications] for good reason [as it] has thedistinct advantage of hearing and seeing evidence and testimony first-hand and has viewed theparties and the cause over a longer time period." Dissent at 27. While we do use an abuse of discretion standard on this appeal, we point out that Judge Nygaard's reasoning is not applicablein this case inasmuch as Judge Brody granted the motions to dismiss and for summary judgmentand thereafter, on May 26, 1998, the case was reassigned to Judge Buckwalter who deniedappellants' application for fees. Furthermore, Judge Buckwalter did so on the basis of the record

without conducting a trial-type hearing. Consequently, he did not have an opportunity to see theparties testify first-hand and, in reality, even though we are adjudicating this appeal on an abuseof discretion basis, we doubt that Judge Buckwalter had any advantage over us in consideringthe appellants' fee application.

5
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The standards for assessing claims for attorney's fees pursuant to section 1988 and under theCivil Rights Act of 1964, 42 U.S.C. 2000e-5(k), are identical. See, e.g., Hensley v. Eckerhart,461 U.S. 424, 433 n.7, 103 S.Ct. 1933, 1939 n.7 (1983); Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct.173, 178 (1980). Accordingly, cases used to interpret one statute may be used to interpret theother. See Brown, 903 F.2d at 277 n.1; Sullivan v. Pennsylvania Dep't of Labor & Indus., 663F.2d 443, 447 n.5 (3d Cir. 1981).

6

The plaintiff was white while the defendants, as well as the majority of the population of the

plaintiff's school, were African-American. See Stevens, 855 F.2d at 395.

7

We are aware that the Barnes alleged that appellant Steven Asher stated that we would prefer tolive across the street from a "Kravco mall" than across the street from the Barnes. In this regardthe Barnes points out that Kravco owns or operates the King of Prussia mall which it asserts is"the largest mall in Pennsylvania." App. at 20-21. Obviously there was nothing racial in thisstatement as it merely demonstrated the strength of his opposition to the Barnes' reopening. Wealso point out that there is some question as to whether anyone, let alone any of the appellants,picketed with the signs that the Barnes mentions. Indeed, the district court in its opiniongranting summary judgment said "[t]he Barnes offers only a newspaper article published in thePhiladelphia Inquirer reporting that such picketers and signs had been seen. The newspaperarticle is hearsay and cannot be considered on a motion for summary judgment." Barnes Found.,982 F. Supp. at 988 n.14. Nevertheless we will assume that the signs were present.

8

The appellants recognize that there was evidence that Robert Marmon acted for racial reasons,see br. at 33, though they deny that he did so. Of course, the absence of evidence to support aconclusion that the other appellants acted out of that motivation would not mean that thesection 1985 conspiracy claim against Robert Marmon therefore was necessarily groundless asthere were other defendants in this action with whom he could have conspired.

9

NYGAARD, Circuit Judge, dissenting.53

Although I agree with the Majority's holding that the Barnes Foundation's claims againstthe neighbors were not frivolous, I disagree that the Foundation's claims were factually groundless. I would affirm the District Court because its factual findings support its

conclusion that the Foundation had a reasonable factual basis for bringing its S1985 claims.The decision made by the District Court was discretionary and mere disagreement with thelower court's decision is insufficient to overcome the substantial discretion the District Courthas traditionally enjoyed. I fear the Majority elides our deferential posture when reviewing foran abuse of discretion and crosses the line that limits our interference with a District Court'sdecision under an abuse of discretion standard. Accordingly, I dissent.

54

Before focusing on the District Court's factual findings and why I find them sufficient todefeat the neighbors' argument that the Foundation's claims were not groundless, a review of our abuse of discretion standard for reviewing attorney's fees is instructive. We have a longand well-established history of deferring to a District Court's award of attorney's fees. As wehave often said, "the award of a reasonable attorney's fee is within the District Court's

discretion." Silberman v. Bogle, 683 F.2d 62, 64-65 (3d Cir. 1982); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 115 (3d Cir. 1976). Thus, as with any issue reviewed for abuse of discretion, our standard of review is narrow. SeeSilberman, 683 F.2d at 65. We will reverse only when the "judicial action is arbitrary, fanciful,or unreasonable, or when improper standards, criteria, or procedures are used." Evans v.Buchanan, 555 F.2d 373, 378-79 (3d Cir. 1977). Stated differently, discretion is abused only where "no reasonable [person] would take the view adopted by the trial court." Lindy, 540F.2d at 115. If, however, reasonable persons could differ as to the propriety of the challengedaction, then it cannot be said that the trial court abused its discretion. See id.

55
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Moreover, our task on review "is not to substitute the remedy [we] would have imposed had[we] been the district court; rather it is to determine whether the district court observed thepromulgated guidelines." Evans, 555 F.2d at 379. An abuse of discretion does not exist simply because we disagree with the District Court's decision. See Lindy, 540 F.2d at 116.

56

We have vested the District Courts with discretionary authority for good reason. TheDistrict Court has the distinct advantage of hearing and seeing evidence and testimony first-hand and has viewed the parties and the cause over a longer time period. As one commentator

remarked,

57

[i]t is not that [the trial judge] knows more than his loftier brothers; rather, he sees moreand senses more. In the dialogue between the appellate judges and the trial judge, the formeroften seem to be saying: `You were there. We do not think we would have done what you did, but we were not present and we may be unaware of significant matters, for the record doesnot adequately convey to us all that went on at the trial. Therefore, we defer to you.'

58

Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22SYRACUSE L. REV. 635, 663 (1971). Given the trial court's proximity to the issues, it iseminently appropriate that "[o]ne seeking to establish [ ] an abuse of discretion bears a heavy burden." Lindy, 540 F.2d at 116.

59

I heartily agree with our esteemed colleague, Judge Aldisert, who, in an earlier fee case,said:

60

At bottom, this case is about whether an appellate court appreciates the allocation of competence between trial courts and reviewing courts. To be sure, statements of deference by appellate courts to district courts appear in this court's dispositions.... But quoting a standardof review and respecting it are different matters.... We must be vigilant of this court'sincreasing proclivity to deny substituting its judgment for that of the district court, but then toproceed with the tack that it expressly renounces.

61

Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1044 (3d Cir.1996). Moreover, I identify fully with what he referred to as "a personal expression of what

troubles me":

62

Appellate courts seem to have lost respect for the narrow review encompassed in reviewingan exercise of discretion.

63

...64

...Instead of playing a limited role in the determination of attorney's fees in limited review of discretion, the appellate courts, like the proverbial camel, have not only stuck their nosesunder the district court's tent, but they are fully inside ranging around in the turf thatproperly belongs to the district courts.

65

Id. at 1048. Judge Aldisert was dissenting from an opinion I had joined. But, I was as wrongthen as I believe the majority is now. "Abuse" itself is a serious accusation and in using theterm "abuse" to define our standard of review, our jurisprudence has recognized theinstitutional superiority of the District Court. Therefore, we should not readily discard itsfindings and conclusions.

66

A prevailing defendant seeking an award of attorney's fees carries an even heavier burdenthan a typical litigant trying to prove an abuse of discretion in another context. It isimperative that we use the utmost restraint in awarding attorney's fees to prevailingdefendants, lest the award discourage novel or unpopular litigation, stifle attorneys'

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enthusiasm and creativity, and chill citizens' constitutional right to meaningful access to thecourts. See, e.g., Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866, 885 (5th Cir. 1988)(warning that overuse of Rule 11 sanctions may "chill attorney's enthusiasm and stifle thecreativity of litigants in pursuing novel factual or legal theories"); Thomas D. Rowe, The LegalTheory of Attorney Fee Shifting: A Critical Overview, 1982 Duke L.J. 651, 661 (1982) (arguingthat fee shifting should not "deter good-faith pressing of tenable but not clear-cut claims anddefenses, especially those turning on unresolved points of law or, in many instances,genuinely controverted factual disputes"); Eric Y. Yamamoto, Efficiency's Threat to the Value

of Accessible Courts for Minorities, 25 HARV. C.R.-C.L. L. REV. 341, 429 n.180 (1990)(arguing that the Supreme Court "curbed the [Civil Rights Attorney's Fees Awards] Act'simpact on access [to the courts] by authorizing payment of fees to prevailing defendants where the plaintiff's claim is `unreasonable' even though not made in bad faith"). Because of these concerns, awards of attorney's fees to prevailing defendants should be made sparingly and in only the most egregious cases. In my view, the present case does not meet thisstringent standard.

In contrast to the Majority, I believe that the District Court's factual findings are sufficientto meet the legal threshold for allegations of racial animus on the part of the neighborhoodassociation and the six neighbors (Ina Asher, Steven Asher, Nancy Herman, Walter Herman,Robert Marmon and Toby Marmon), all of whom are Caucasian. See Appellee's Br. at 4, 6.

With respect to the association, the District Court noted that during a Commissioner'smeeting, Robert Marmon, one of the association's creators, coordinators, and spokespersons,made racially disparaging remarks about the Barnes Foundation. Specifically, Mr. Marmonrepeatedly referred to the Foundation's members as "Mr. Glanton and his people," aparadigmatic reference to African-Americans, and then called them "carpetbaggers" and"outsiders." Given Mr. Marmon's leadership role, it was reasonable to believe that his racialanimus represented the views of the association. Additionally, the neighbor hood association'slack of opposition to other institutions with parking and traffic needs similar to the BarnesFoundation further evidences a racially discriminatory motive.

68

Other facts in evidence also support the Foundation's allegations. For example, the DistrictCourt noted the affidavit of Thomas Massaro, a land use consultant, who opined that the

neighbors were so irrationally and firmly opposed to the Foundation's proposal that itsuggested their concerns were a pretext for racial prejudice. These attitudes could also suggestthe same to the Foundation and the District Court. The Foundation also noted in itscomplaint that, along with other persons, appellants Ina Asher, Walter Herman, RobertMarmon, and Toby Marmon congregated and picketed outside the Foundation during itsopening gala event. Several of the picketers were observed holding signs that read, "From LA to PA, Money Buys Justice" and "Lincoln University--Go Home." Mr. and Mrs. Marmon stoodin the midst of traffic flow with their video cameras, shining the camera's lights into the carspulling in for the opening event. Even if the defendants were not personally holding theracially derogatory signs, they protested alongside others who were. This provided theFoundation with a reasonable inference that the defendants sought to promote a messagecharged with racial overtones. Far from arbitrary or fanciful, these facts, which are

undisputed, suggest the District Court had a reasonable basis for holding that theFoundation's allegations of racial animus were not factually groundless.

69

I fear that the Majority affords too little attention to our long-standing principles governingthe abuse of discretion standard and too easily discounts the findings of racial hostility.Today, racially motivated conduct is rarely blatant and easily discernible. Persons acting withracial animus have become more sophisticated in disguising their motivations. Althoughdiscrimination cases rarely contain an evidentiary "smoking gun," this does not mean thatracial animosity does not exist. As we earlier explained,

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[a]nti-discrimination laws and lawsuits have `educated' would-be violators such thatextreme manifestations of discrimination are thankfully rare. The sophisticated would-be violator has made our job a little more difficult. Courts today must be increasingly vigilant intheir efforts to ensure that prohibited discrimination is not approved under the auspices of legitimate conduct, and `a plaintiff's ability to prove discrimination indirectly,circumstantially, must not be crippled... because of crabbed notions of relevance or excessivemistrust of juries.'

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Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081-82 (3d Cir. 1996) (citing Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987)). In light of this reality, I believe the DistrictCourt's reliance on circumstantial evidence and its conclusion that the Barnes's claims had atleast the threshold quantum of factual support was reasonable and well within its discretion.

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Finally, I also disagree with the Majority's reversal of the neighbors' bad faith claim. TheMajority reverses the bad faith claim because the District Court made no mention of thisargument. Thus, the Majority concluded that it "was not able to say that the district courtrejected [it]." Maj.Op. at 166. In reversing the bad faith claim, the Majority cites Gunter v.Ridgewood Energy Corp., 223 F.3d 190, 196-97 (3d Cir. 2000), wherein we stated that aDistrict Court must explain its reasoning and application of the fee-awards jurisprudence toallow adequate review by an appellate court. However, we have also assumed that a District

Court has considered or weighed an argument, even when it has failed to discuss theargument in its decision. See Acosta v. Honda Motor Co., Ltd., 717 F.2d 828, 844 (3d Cir.1987) (assuming that the District Court weighed the amount of plaintiff's recovery as a factorin a fee award even though the District Court did not state that it was doing so). Therefore, theDistrict Court's failure to discuss the bad faith claim does not necessarily imply that itoverlooked or ignored it.

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In summation, jurisprudence has reposed in the District Court great discretionary power infee cases. We must respect it. For these reasons, I strenuously dissent.

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Warning letter sent to Marc Stein's lawyer warning her that defendants will request sanctions